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Common Sense from the Court: Schroder v. Estate of Freebold-Schroder

Justice Alex Pazaratz of the Superior Court of Justice Family Branch in Hamilton is well known for his animated and common sense based decisions. It was therefore refreshing to see him weigh in on an estates matter that was dragging its way through the Court.

In Schroder v. Estate of Freebold-Schroder, 2019 ONSC 6569 (November 12, 2019), he had occasion to comment on an unprepared matter that came before him by way of Settlement Conference:

[1] I think I can take judicial notice of the fact that court cases involving 93 year old litigants should proceed through our system more quickly – as opposed to conspicuously slowly.

[2] The nonagenarian Applicant herein is trying to pursue financial claims against the estate of his deceased wife.  She left everything to her children from a previous marriage.  He says that’s not fair.

[3] I make no comment or prediction as to the outcome of this dispute.

[4] But I have serious concerns that nobody appears to be giving this matter the priority it deserves.

Apparently, counsel hadn’t completed disclosure or questioning that had been previously ordered in July 2019. In the meantime, the Estate had commenced separate proceedings in the Superior Court against the Applicant:

[9]  When counsel returned, it appeared there was an additional stumbling block because the Respondent estate has recently commenced a separate Superior Court proceeding, not in the Family Branch, against the Applicant.

a) So, the Applicant is suing the estate in one courthouse.

b) The estate has decided to respond by suing him in another courthouse.

c) We’re dealing with the same parties and basically the same facts.

d) But the estate doesn’t want hiscase against them to proceed, until their case against him is determined.

e) If all of this sounds needlessly complicated and time-consuming…that’s because it’s needlessly complicated and time-consuming.

Justice Pazaratz further comments on the conduct of the litigation:

[10]  Our court system frequently gets blamed for being slow.  But more often than not, it’s overly litigious parties who cause the delay.

a) The lawyers haven’t set up questioning in the original family court case because they couldn’t agree on whether questioning of the elderly Applicant should be limited to one hour because of his health.  That’s no reason to delay things indefinitely.  Book the questioning.  Start with the one-hour time limit which the Applicant is proposing.  If need be, a subsequent date can be arranged to complete the questioning.  Do something.

b) The estate’s counsel doesn’t want the family court matter to proceed until the separate estate claim “catches up”.  This makes no sense.   The Respondent estate filed its Answer in Family Court on December 20, 2018.  I have received no explanation as to why the “new” claims being advanced by the estate couldn’t have been set out in the Answer, as a counter-claim.  I have received no explanation as to why all this time has elapsed in the family file, and now the estate has elected to bring a separate action so late in the proceeding.  There appears to be resistance to the idea that all claims involving these parties should be dealt with simultaneously, either by consolidating the actions or dealing with them together.  Again, we have an obligation to all litigants – particularly frail 93 year olds – to be sensible and efficient.

[11]  The Respondent estate has previously delayed this matter.  A Settlement Conference scheduled for May 23, 2019 had to be adjourned because the estate changed counsel.  These things happen.  But the court must be mindful that while delay in litigation is always to be discouraged, it is particularly unacceptable where cumulative delays have the potential to create significant (potentially determinative) strategic advantage or disadvantage.

As an experienced counsel who practiced for many years in Hamilton the application of common sense to the dispute resolution or determination process is ingrained in me. It continues to surprise me that counsel don’t get this and have to have the riot act read to them in open court and in a publicly reported decision.

This paper is intended for the purposes of providing information only and is to be used only for the purposes of guidance. This paper is not intended to be relied upon as the giving of legal advice and does not purport to be exhaustive.

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